• The terms merger and amalgamation have not been defined in the Companies Act, 1956 .• The terms merger and amalgamation are synonyms and the term ‘amalgamation’, as per Concise Oxford Dictionary, Tenth Edition, means, ‘to combine or unite to form one organization or structure’.
• The provisions relating to merger and amalgamation are contained in sections 391 to 396A in Chapter V of Part VI of the Act.• The Act and the relevant rules pertaining to amalgamation are to be followed scrupulously. The provisions of the Act also deal with compromise or arrangement within or without amalgamation or merger. Presently, the High Court enjoys powers of sanctioning amalgamation matters under section 394 of the Act.
• compromise or arrangement can be made between a company and its creditors or any class of them and also between a company and its members or any class of them.• Such a compromise or arrangement requires sanction of the court, which directs holding of meeting of creditors or members or class of creditors or members, as the case may be. On agreement of creditors or members present in majority representing three- fourth in value (both the conditions are concurrent and cumulative) of creditors or members, the court may sanction any such compromise or arrangement.
• The court enjoys vast powers in relation to grant of sanction for amalgamation of companies and can make provisions in the order, in respect of all or any of the following matters: - – the transfer to the transferee company of the whole or any part of the undertaking, property or liabilities of any transferor company;
– the allotment or appropriation by the transferee company of any shares, debentures, policies, or other like interests in that company which, under the compromise or arrangement are to be allotted or appropriated by that company to or for any person;– the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;
– the dissolution, without winding up, of any transferor company;– the provisions to be made for any person who, within such time and in such manner as the tribunal directs, dissent from the compromise or arrangement; and– such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out.
• It is mandatory for the court to consider not only report of Registrar of Companies concerned but also the report of Official Liquidator prior to sanctioning the scheme of amalgamation.• The Registrar of Companies & Official Liquidators have to make a report to the Court that the affairs of the company are not being conducted in a manner, prejudicial interest of their member or to public interest.
• a merger can be made effective from a past date, i.e. it can be retrospective. However, effective date, which is too far in the past, can create problems and adverse implication for such a merger in the form of non- compliance of various laws cannot be ruled out.• There is no bar to have the effective date of amalgamation in future. Incidentally, majority of the mergers are effective from a future date.
• The ‘Appointed Date’ connotes the date of amalgamation i.e. the date from which the undertaking including assets and liabilities of the transferor company vest in transferee company. The ‘Effective Date’ signifies the completion of all the formalities of merger.
• it is possible to include reduction of capital as part of the scheme of amalgamation provided the Articles of Association of the company authorize such reduction and special resolution to this effect is passed as contemplated under section 100 & 101 of the Act.
• There have been numerous decided cases which indicate that separate petition under section 100 of the Act for reduction of capital need not be made if the same is covered as a part of scheme of amalgamation.• The Courts have held that the provisions contained in section 391 are a complete code in itself. Thus, no separate petition is necessary for reduction of capital which is a part of scheme of amalgamation.• However, in the resolution in which the approval for scheme of amalgamation is sought must, in explicit terms, state that this approval is also for reduction of capital, being part of the scheme.
• ‘Reverse Merger’ is a coined term generally used in those cases of mergers where a company having higher networth is merging into a company having networth lower than it.• in cases of amalgamation or merger or demerger under the Act, SEBI Takeover Regulations have no applicability as laid down in Regulation 3(1)(j) of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997.
• It has been held in some cases that where the entire undertaking of the transferor company is transferred to the transferee company not affecting the rights of the creditor or members inter se and there is no reorganization of capital of the transferee company, there is no need for the transferee company to file a separate petition. In practice, however, the petition is generally preferred by the transferee company.
• The only obligation of listed companies, as provided in clause 24 of the Listing Agreement, is to file any scheme/petition propose to be filed before any Court/Tribunal under sections 391, 394 & 101 of the Act with the stock exchange for approval at least one month before it is presented to the Court or Tribunal.• The requirement is, therefore, to file the Scheme/Petition at least 30 days prior to filing it with the Court/Tribunal. It is not necessary to obtain prior approval of the stock exchange. The Courts have ruled that non-receipt of approval from stock exchange does not bar the Courts to approve the amalgamation/merger as the approval of the stock exchanges is a mere procedural formality.
• The approval of shareholders’ and creditors – secured and unsecured are obtained in meetings convened under the directions of the Court. The Court normally appoints a Chairperson and an alternate Chairperson for each such meeting. The application is made to the Court for directing convening of meetings and the Court can issue directions on any or all of the following matters:- – Date, time and place of meetings; – Appointment of chairperson for the meetings; – Contents of notice and the manner of service of Notice; – Determination of the class/classes of members and creditors whose meetings are to be held; – Determination of quorum; – Any other matter as the court may deem fit.
• dispensation of the meetings of shareholders or creditors• It is the discretion of the Court and generally where it is shown that creditors or members have given their consent to the scheme of amalgamation and their interest are not prejudicially affected, the Courts grant dispensation. The judicial discretion is exercised after careful considerations of the facts and circumstances of the case. A case in example could be grant of dispensation of shareholders’ meeting in a company with few shareholders and all of them have given their consent in writing.
• The voting at Court convened meetings of members or creditors is to done through poll only. The voting by show of hands is not permissible.• Section 391(2) requires that the resolution approving the scheme of amalgamation should be passed by majority in number representing 3/4th in value of the creditors or members. Both the conditions are cumulative. However, conditions of majority in number and representing 3/4th in value is to be applied for members or creditors present in person or through proxies at the time of meeting.
• It is incumbent upon the Chairperson to submit report of proceedings of the meeting to the court indicating – – the number of persons present at the meeting; – the number of persons voting in person and through proxy; – the value of shares/indebted amount; – the votes cast in favour of the resolution; and – the votes cast against the resolution.